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1 Justice Committee Inquiry Into the Role and Purpose of the Crown

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1 Justice Committee Inquiry Into the Role and Purpose of the Crown Justice Committee Inquiry into the role and purpose of the Crown Office and Procurator Fiscal Service Written submission from Dr Stuart MacLennan Introduction The role of the Crown Office and Procurator Fiscal Service (COPFS) was once a fairly benign one, attracting little in the way of public attention. In recent years, however, the COPFS has become a magnet for criticism. Such criticism has included: 1. The collapse of the trial of Angus Sinclair (the “World‟s End murder trial”); 2. The failed prosecution of Andy Coulson, the pursuance of which was questioned by Prof. James Chalmers, among others;1 3. The decision not to prosecute Harry Clarke, the driver in the Glasgow bin lorry crash; 4. Poor conviction rates, in particular for sexual offences, and particularly following the decision in Cadder v HMA. Less specific concerns include the length of time the service takes in both reaching decisions and in prosecuting cases, and the criticism of the Dean of the Faculty of Advocates, Gordon Jackson QC, that a lack of discretion on the part of Fiscals and Advocates Depute results in the pursuance of prosecutions that ought to have been dropped.2 Earlier this year I was invited to contribute an article to the journal Scottish Affairs,3 in which I critiqued the management of justice policy in Scotland over the preceding nine years. This contribution included some consideration of the above-identified failings of the COPFS. In this piece, I suggested that one cause of these failings might well be the unsatisfactory role of the Lord Advocate in the modern governance of Scotland. In particular, I suggested that it may well be the case that the attempt to “de-politicise” the role of the Lord Advocate has resulted in the alienation of an important function of government from adequate Ministerial management or oversight. In short, the Lord Advocate wears too many hats. It is my intention with this evidence, therefore, to focus upon the role of the Lord Advocate, and to propose some reforms to the role for the Committee‟s consideration. 1 D. Leask, ‘Crown launches rare defence of failed prosecution after Coulson trial collapses’, The Herald, 4 June 2015 <http://www.heraldscotland.com/news/13411371.Crown_launches_rare_defence_of_failed_prosecuti on_after_Coulson_trial_collapses/>. 2 G. Jackson, ‘Open letter to the Lord Advocate, James Wolffe QC’, Scottish Legal, 12 September 2016 <http://www.scottishlegal.com/2016/09/12/open-letter-to-the-lord-advocate-james-wolffe-qc/>. 3 S. MacLennan, ‘Safer and Stronger? The Decline of the SNP’s Managerial Competence and Liberal Welfarism over Justice Policy in Government, 2007-2016’ (2016) 25 Scottish Affairs 62. 1 Functions of the Lord Advocate The role of the Lord Advocate is steeped in a lengthy history of which the Committee will doubtless be aware. As head of the Scotland‟s system of criminal prosecutions, the Lord Advocate is in overall charge of the COPFS, which is the subject of the Committee‟s inquiry. Although the Crown Agent (discussed below) is the Chief Executive of the COPFS, the Lord Advocate provides the organisation‟s leadership and sets the overall direction of the service. In this respect, where the Crown Agent is the Chief Executive, the Lord Advocate is more akin to the Chairperson of a company. The Prosecutorial Role of the Lord Advocate The functions of the Lord Advocate are extensive, though most are, obviously, delegated. In addition to his constitutional functions (discussed below), these functions include: 1. The decision to prosecute crimes committed in Scotland. 2. Being consulted on the fixing of the time and location of High Court sittings. The Lord Advocate may also require the High Court to hold additional sittings. 3. The determination of the jurisdiction in which crimes are prosecuted. 4. Providing instructions to the police with respect to the reporting of crimes. 5. The admittance of charged persons to bail. 6. The decision to prosecute a minor. 7. Referring a point of law to the High Court for their opinion (a “Lord Advocate‟s reference”). 8. The authorisation of a private prosecution. 9. The appointment of Advocates Depute and Procurators Fiscal. 10. The initiation or waiving of Fatal Accident Inquiries. 11. Conducting extradition proceedings. While some of these tasks are perfunctory in nature, others resemble policymaking and high-level decision-making. The Constitutional Role of the Lord Advocate In addition to his functions as the head of Scotland‟s system of prosecution, the Lord Advocate is also the Scottish Government‟s lawyer. As the Lord Advocate is de jure a member of the Scottish Government, the relationship between the Lord Advocate and the Scottish Government is much more closely akin to that of an in-house counsel than that of a lawyer and client. The Lord Advocate is, along with the Advocate General, responsible for referring to the Supreme Court any question as to whether or not a Bill is within the legislative competence of the Scottish Parliament prior to that Bill receiving Royal Assent. The Lord Advocate may also defend such an action brought by the Advocate General. The Lord Advocate may also attend in his or her role as the Scottish Government's principal legal adviser.4 4 Scottish Government, ‘Cabinet Secretariat’ <http://www.gov.scot/About/People/14944>. 2 The Crown Agent The Crown Agent is the civil service head of the legal staff in the COPFS and legal advisor to the Lord Advocate on prosecution matters. The Crown Agent serves as Chief Executive to the COPFS and is therefore in charge of the day-to-day running of the service. Holding the Lord Advocate to Account Accountability to the Scottish Parliament The Scottish Parliament has 129 members, which has remained constant since the Parliament‟s inception in 1999. There is no provision for appointing or co-opting members to the Parliament. Consequently, the Lord Advocate may or may not be a Member of the Scottish Parliament. Since the transfer of the office of Lord Advocate to the Scottish Government and Parliament the office has never been occupied by a member of the Scottish Parliament.5 The Lord Advocate at the inception of devolution, Lord Hardie, was appointed in 1997 by the UK Government before moving with his office to the new Scottish Government in 1999. Lord Hardie‟s successor, Colin Boyd, was elevated to the peerage six years after taking up the post of Lord Advocate. No subsequent Lord Advocate has been a member of any legislature. The Scotland Act 1998 permits the Lord Advocate to participate in the proceedings of Parliament, but not vote. Rule 4.5 of the Scottish Parliament Standing Orders provides for the extent to which the Lord Advocate can participate. Accountability to Ministers Government Ministers are not only accountable to Parliament, through their collective accountability as ministers; they are also accountable to each other. Where ministers are required to stand-by not only the decisions that have taken individually, but also those of all their colleagues, those ministers naturally have more than a passing interest in ensuring that those decisions of their colleagues are sound. This is one of the key purposes of holding cabinet meetings. In this respect, however, the role of the Lord Advocate is unique. The Lord Advocate is bound by collective responsibility, except insofar as the Lord Advocates reserved functions are concerned, as head of the systems of criminal prosecution and investigation of deaths in Scotland. This produces the somewhat anomalous situation whereby some decisions the Lord Advocate takes are, effectively, decisions of the Scottish Government, while the Lord Advocate takes other decisions alone. 5 The more recently created office of Counsel General for Wales, which performs many of the constitutional functions of the Lord Advocate but has no prosecutorial functions has, since its inception, been held by a Member of the Welsh Assembly. 3 The Lord Advocate as a Political Office Though the Law Officers are seldom overtly political offices, their appointment is usually a political one. Until 1979 it was common for the Lord Advocate to be a Member of the House of Commons. The Lord Advocate would cease to hold office when the Government that appointed him left office and a new Lord Advocate reflecting the political hue of the new Government was appointed. This, however, changed in 2007. Lord Boyd‟s successor as Lord Advocate, Elish Angiolini, was appointed at the tail end of the last Labour Executive (as it then was) in January 2007. Angiolini was, undoubtedly, a less overtly political appointment than any of her predecessors. Confirming the newly de-politicised status of the office, Angiolini was retained as Lord Advocate by the new SNP Executive in May 2007, although she would no longer attend meetings of the Scottish Cabinet as of right. It is obviously desirable that prosecution decisions are not political decisions, and it therefore makes sense that such decisions should not be taken by a political actor. However, it remains the case that the COPFS is a large government agency performing one of the essential functions of the state. To that extent, it is therefore desirable that such a service should be subject to political oversight. Where there are failings in the service, Ministers, Parliament, and the public should be able to identify a responsible political figure to take the blame.6 Yet insofar as the Lord Advocate exercises that executive function, he is not subject to oversight by an individual Government minister, nor is he subject to the inevitable scrutiny by his colleagues through their all being bound to each other. It is submitted that it was never the intention that the Lord Advocate should be an entirely non-political role.
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